In these terms and conditions of business, unless otherwise specified, the following words have the meaning specified below:
Agency: London Governess Limited, Registered Number 08021684, Registered Office at 17 Palace Gate, London W8 5LS;
Agreement: these terms and conditions of business, the Schedule and the Specific Terms (if any);
Child Carer: means any nanny, maternity nurse, governess or other child carer Introduced by the Agency to the Client for a Temporary Placement or Permanent Placement;
Client: any person or their agent, or any third party appointed by such person or their agent (whether this be a person, firm or corporate body) to whom the Child Carer is Introduced;
Confidential Information: any information (in any form) belonging or relating to the Client or the Agency, the Agency’s clients, customers, business plans, affairs or activities, including information belonging or relating to any Child Carer, which is confidential to each of the parties named above, and any document marked ‘Confidential’, or any information which the receiving party has been informed is confidential or which it might reasonably expect the disclosing party would regard as confidential;
Engagement: the engagement, employment or use of the Child Carer, whether under a contract of service, for services, agency, license, franchise or partnership agreement; or in any other capacity, whether directly or indirectly through a third person or limited company; “Engages” or “Engaged” shall be construed accordingly;
Fee: shall mean the Introduction Fee, the Trial Fee and the TP Fee; “Fees” shall be construed accordingly;
Interest: 8% above the Bank of England base commercial lending rate in force from time to time and compounded monthly;
(i) the Client’s interview of the Child Carer in person, by telephone or by video conference (e.g. Skype), following the Client’s instruction to the Agency to search for the Child Carer; or
(ii) the passing to the Client of a curriculum vitae or information which identifies the Child Carer and leads to an Engagement of that Child Carer, whether the Child Carer was known to the Client previously or not.
“Introduces” and “Introduced” shall be construed accordingly;
Introduction Fee: the applicable fee(s) payable by the Client for an Introduction resulting in a Permanent Placement as set out in the Schedule or as agreed in the Specific Terms (if any);
Late Payment Charge: a one off late payment charge of 20% of the value of the unpaid Fee that has not been settled in accordance with the payment terms set out in Clause 5 representing a fair pre-estimate of the additional cost to the Agency in dealing with the Client’s breach of this Agreement;
Net Salary: the aggregate net annual taxable emoluments payable to or receivable by the Child Carer in the first year of their Permanent Placement, including salary, allowances, bonuses and other identifiable financial benefits, whether contractual or otherwise and whether guaranteed or not or the annualised gross fee payable to or receivable by the Child Carer (where Engaged on a self- employed basis directly or indirectly or in any other capacity);
Permanent Placement: the Child Carer who is Engaged by the Client on a permanent basis whether full or parttime;
Regulations: the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (as amended);London Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684 Schedule: the schedule attached detailing the Fee applicable for Placements and Trial Period;
Temporary Placement: the Child Carer who is Engaged by the Client either on an ongoing temporary basis (based
on a minimum period of Engagement) or on a fixed term basis of less than 12 weeks, whether directly or indirectly through the Child Carer’s limited company;
Special Terms: any special terms and conditions agreed in writing between the Client and the Agency in addition to these terms and conditions of business;
TP Fee: the applicable fee payable by the Client for an Introduction resulting in a Temporary Placement, which shall be a fixed weekly fee irrespective of the number of hours worked by the Child Carer, as set out in the Schedule or as agreed in the Specific Terms;
Third Party: any third party (whether a person or other legal entity) to whom the Client has introduced the Child Carer;
Trial Fee: the daily fee applicable for the Engagement of the Child Carer for a Trial Period set out in the Schedule;
Trial Period: a period during which the Client wishes to Engage a Child Carer prior to offering a Permanent Placement to the Child Carer;
- The Agreement
2.1 When instructed by a Client to Introduce the Child Carer under this Agreement, the Agency operates as an employment agency for the purposes of the Regulations.
2.2 This Agreement constitutes the entire contract between the Agency and the Client for the Introduction of Child Carers for Permanent and Temporary Placements, and is deemed to be accepted by the Client upon the Client registering online with the Agency, signing this Agreement, upon the Introduction of the Child Carer, the Engagement of the Child Carer, or by the Client authorising the Agency to commence work on a vacancy, whichever event occurs the earlier.
2.3 If there is any conflict between these terms and conditions of business and the Specific Terms, these terms and conditions of business shall take precedence. This Agreement shall prevail over any other terms of business or purchase conditions put forward by the Client.
- Agency’s obligations
3.1 The Agency shall perform its recruitment services with reasonable care, skill and diligence in accordance with recruitment industry practice. The Agency shall advertise vacancies and source Child Carers by any means that the Agency deems reasonably necessary, including but not limited to advertising via job boards and third party websites in order to source suitable Child Carers for the Client.
3.2 The recruitment services shall be performed in compliance with all legislation, statute, and or legal requirement affecting the provision of Child Carers, including but not limited to the Regulations and the Safeguarding Vulnerable Groups Act 2006.
3.3 The Agency shall take reasonably practicable steps to obtain:
(a) confirmation of the Child Carer’s identity;
(b) confirmation that the Child Carer has the experience, training and qualifications
(c) to provide copies to the Client of two references from persons who are not relatives of the Child Carer and who have agreed that the references they provide may be disclosed to the Client; and
(d) offer relevant qualifications of the Child Carer.
3.4 The Agency will not arrange interviews for the Client with Child Carers until the Agency has confirmed the identity of the Client. The Client accepts that they will be required to provide evidence of their identity and proof of address in order to satisfy the Agency in this regard. Further, the Client may be asked to provide evidence supporting proof ofLondon Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684 residency at any other location to which the Child Carer is to be interviewed and/or required to attend during a
Placement (particularly with respect to overseas Placements).
3.5 The Client shall be responsible for all reasonable and necessary travel, hotel and flight expenses (as applicable)
of the Child Carer incurred in attending an interview with the Client outside of London, United Kingdom. No interview will be confirmed with the Client until the Client and the Agency agreed all relevant expenses of the Child Carer.
3.6 If the Agency has taken all reasonably practicable steps to obtain information under clause 3.3 and has been unable to do so fully it shall inform the Client of the steps it has taken to obtain this information in any event. It is the Client’s responsibility and sole decision to determine whether to Engage any Child Carer in this situation.
3.7 In the event that the Agency receives or obtains information which indicates that the Child Carer is or may be unsuitable for the position in which the Child Carer has been Engaged with the Client, it shall inform the Client of that information without delay. This obligation shall only apply for a period of 2 months from the date of the Introduction.
3.8 The Agency does not itself Engage the Child Carer, whether directly or indirectly. If a Client wishes to Engage a Child Carer following an Introduction by the Agency, the Client shall be required to Engage the Child Carer directly and the Child Carer shall be under the direction, supervision and control of the Client at all times.
- Client’s obligations
4.1 The Client shall provide to the Agency, at the start of a vacancy search, the following information:
(a) details of the proper identity of the Client;
(b) the position which the Client seeks to fill including start date, including the type of work the Child Carer in that position would be required to do, the location (including all overseas locations) at which and the hours during which the Child Carer would be required to work and any risks to health or safety known to the Client and what steps the Client has taken to prevent or control such risks;
(c) the experience, training, qualifications and any authorisation which the Client considers are necessary, for the Child Carer to possess in order to work in the position;
(d) the minimum rate of Net Salary and any other benefits and expenses which the Client would offer to a person i n the position which it seeks to fill, and the intervals at which the person would be paid;
(e) where applicable, the length of notice which the Child Carer in such a position would be required to give, and entitled to receive, to terminate the employment with the Client;
(f) a copy of the terms and conditions the Client intends to require the Child Carer to work ;
(g) any other information which the Agency requests from time to time.
4.2 Notwithstanding clause 3, the Client shall have sole responsibility and liability for:
(a) taking up all references including academic or professional qualifications before Engaging the Child Carer;
(b) checking the Child Carer’s right to work and obtaining any work and other permits (as may be required by the law of the country in which the Child Carer is Engaged);
(c) securing consent for and making DBS checks on the Child Carer if these are not yet available;
(d) arranging any medical examinations and/or other investigations into the medical history or background of any Child Carer;
(e) the decision to Engage the Child Carer;
(f) Engaging the Child Carer on an appropriate contract for services or contract of service (and providing a copy of the contract to the Agency before the commencement of any Engagement) taking into account any statutory requirements of the country in which the Child Carer is Engaged;
(g) providing suitable living accommodation for the Child Carer where the Placement requires the Child Carer to live with the Client or such other location where the Child Carer is required to work for the Client (and providing details to the Agency before the commencement of the Engagement);
(h) taking out appropriate employers liability and public liability insurance cover (or other statutory insurances as may apply in the country in which the Child Carer is Engaged) which covers the Child Carer; and
(i) paying the Child Carer and where appropriate, deducting and paying National Insurance Contributions and PAYE Income Tax (or such other social security contributions and tax as may be required to be deducted in the country in which the Child Carer is Engaged) and for payment of all statutory entitlements due to the Child Carer, where applicable to the Child Carer.London Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684
4.3 In the event that the Client agrees to pay reasonable travel and or ancillary expenses for the Child Carer incurred in attending interviews (and provided these have been pre-agreed in writing between the Client and the Child Carer) in accordance with clause 3.5 above, the Client must settle the expenses directly with the Child Carer.
4.4 If the Child Carer has already been Introduced to the Client, whether directly or indirectly through another employment agency or other party prior to the Agency’s Introduction, the Client shall notify the Agency in writing within 24 hours of the Agency’s Introduction and where requested provide evidence of that previous introduction. If the Client does not provide written notification the Client will be liable to pay a Fee upon the Engagement of the Child Carer.
- Fee(s) – When Payable
5.1 All Fees become due on the date the Child Carer accepts an offer of an Engagement with the Client and are calculated in accordance with the Schedule. Fees are payable into the bank account specified by the Agency.
5.2 An Introduction Fee will be due and payable for a Permanent Placement. A Temporary Placement Fee will be due and payable for a Temporary Placement. Any Placement which is based overseas will be subject to the relevant Fee applicable to overseas Placements as set out in the Schedule.
5.3 All Fees are quoted exclusive of VAT. Should the Agency become VAT registered in the UK after acceptance of this Agreement, the Agency will notify the Client and all future Fees will be subject to VAT (or such other sales or service tax as may apply to a Client resident overseas) at the prevailing rate (where applicable).
5.4 All invoices must be settled within 14 days of the date of the invoice, prior to the commencement of an Engagement, or prior to the date of departure of a Child Carer from the United Kingdom to commence a Placement overseas, whichever occurs the earlier. If the Client does not raise any query within 7 days of the date of invoice, the Client will be deemed to have accepted the invoice. Without prejudice to any other remedy or statutory right it may have, the Agency reserves the right to charge Interest and a Late Payment Charge on overdue Fees or part thereof. Further, the Agency reserves the right to revert back to the Fee (set out in the Schedule) where an alternative Fee had been previously agreed in the Specific Terms.
5.5 The Client agrees to notify the Agency immediately of any Engagement and to provide details of the agreed Net Salary to the Agency (upon acceptance of an offer of an Engagement), providing documentary evidence as required by the Agency.
5.6 The Client also agrees to notify the Agency immediately of any change after the Engagement has commenced in the nature of the Child Carer’s employment, working hours, salary, or days of work, and where appropriate to pay an additional fee in line with the charges.
- Fee(s) – non negotiable
6.1 Where a Permanent Placement is part-time, the flat rate Introduction Fee will be charged. If the Client requests a Child Carer for a Trial Period before Engaging them into a Permanent Placement, the Trial Period will be deducted from the Introduction Fee.
6.2 The Fee is payable in the event the Client or Third Party Engages the Child Carer within a period of 12 months from the date of Introduction, the Client’s withdrawal of an offer of an Engagement or the Child Carer’s rejection of an offer of an Engagement, whichever is the later. The relevant Fee is due and payable irrespective of whether a Child Carer is Engaged into a different vacancy to the vacancy the Child Carer was originally Introduced for.
6.3 If the Client withdraws an offer of an Engagement to the Child Carer, the Agency reserves the right to charge the Client the Fee (in its absolute discretion).London Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684
6.4 If, notwithstanding that the Child Carer has been Introduced for a Permanent Placement, the Client notifies the Agency that it wishes to Engage the Child Carer on a Temporary Placement basis a TP Fee will be due and payable by the Client. The reverse situation will attract an Introduction Fee.
6.5 The Client acknowledges that the Agency has undertaken considerable resource in sourcing Child Carers for requirements and understands that the Agency incurs additional expense in ascertaining whether Child Carers have been Engaged during the 12 months following an Introduction. Accordingly, where the Client fails to notify the Agency of any Engagement, the Agency shall be entitled to invoice an Introduction Fee irrespective of the type of Placement made. The Client acknowledges that this is a genuine pre-estimate of the additional cost and expense the Agency incurs as a result of the Client’s breach of the Agreement.
6.6 Should the Client re-Engage the Child Carer within three months from the date of termination of a Permanent Placement (whether directly or indirectly), a further Fee will be charged with no entitlement to the rebate provisions in clause 7 below.
- Fee(s) – Permanent Placement Guarantee
7.1 If, after an offer has been made and accepted the Permanent Placement (a) does not commence because the
Child Carer withdraws their acceptance, or (b) if the Permanent Placement is terminated within 8 weeks of its commencement (including any Trial Period, period of notice or any period of notice that would have applied in the absence of garden leave or payment in lieu of notice) the Agency shall at no extra charge, use reasonable efforts to source a replacement Child Carer for the Permanent Placement. Such efforts will be limited to the Agency providing a further shortlist of 3 Child Carers within a period of 4 weeks.
7.2 In the event that the Client extends the Agency the opportunity to source a replacement Child Carer in accordance with clause 7.1 above, and the search is unsuccessful (other than through any failure by the Client), the Agency may (in its discretion) refund the Client in accordance with the following scale:
Week terminates % Refunded
Week 0 to end of week 4 50%
Week 5 to end of week 8 25%
7.3 The Client shall only be entitled to the Guarantee set out in this Clause 7 provided always that:
(a) the Client notifies the Agency in writing of the termination of the Permanent Placement within 7 days of such termination;
(b) the Agency’s invoice has been settled in full without any discount;
(c) the termination of the Permanent Placement arose due to the Child Carer having resigned of their own volition (and other than in connection with any act, omission, breach of contract, negligence, recklessness, pressure or fault of the Client) or the Permanent Placement was terminated by the Client due to the Child Carer’s lack of capabilities and the Client provides evidence satisfactory to the Agency that the Child Carer was incapable of performing in the role for which they were Permanently Engaged;
(d) the Client has met and discharged all their legal responsibilities with regard to the Child Carer’s tax and national insurance;
(e) the Client has treated the Child Carer fairly and reasonably and in accordance with employment legislation, without being abusive, violent or discriminatory;
(f) the Client has not made any material change in the Child Carer’s working conditions, employment conditions, or hours of work.
7.4 The Client shall only be entitled to the Guarantee once per Permanent Placement, so that if a replacement Child Carer leaves the Client’s Permanent Placement the Client shall not be entitled to a refund or a further replacement.
7.5 No refund or guarantee provisions apply to the reduction of or early termination of a Temporary Placement.London Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684
- Temporary Placements
8.1 The Client accepts and agrees that it is required to commit to a minimum period of Engagement in respect of all Temporary Placements.
8.2 If a Client wishes to extend a Temporary Placement a further TP Fee is payable which shall be determined by the Agency and confirmed in writing to the Client. There shall be no limit upon the number of extensions to a Temporary Placement that the Client may make, subject always to the payment of the TP Fee.
8.3 In the event that the Client, its agent, or a Third Party (to whom the Client has Introduced the Child Carer to) Engages the Child Carer Introduced either (a) during a Temporary Placement or (b) within 6 months of the end of a Temporary Placement, the Client will be liable to pay an Introduction Fee to the Agency. No refunds or rebates apply to the Introduction Fee in this event.
8.4 Where the Client wishes to terminate a Temporary Placement with the Child Carer, the Client shall provide the notice specified in the relevant contract the Client has with the Child Carer, and shall provide written confirmation of such termination to the Agency. Where the Child Carer is Engaged in a location outside of London, United Kingdom (which includes all overseas destinations) the Client will ensure that it pays the Child Carer’s reasonable and necessary expenses in returning back to their country of residence, which includes but shall not be limited to the cost of a return flight back to the Child Carer’s country of residence. The Client shall not deduct the cost of any such expenses (or any expenses properly due to the Child Carer arising from the Engagement) from any salary payments due to the Child Carer.
9.1 The Agency and the Client will not unlawfully discriminate against any Child Carer whether directly or indirectly, on grounds of sex, sexual orientation, marital or civil partner status, gender reassignment, race, religion or belief, colour, nationality, ethnic or national origin, disability or age.
9.2 The Agency shall not be liable to the Client for any loss, liability, damage, costs, claims or expenses (whether direct, indirect, or consequential) incurred by the Client whether arising in respect of contract, tort (including negligence), statute, misrepresentation or otherwise, in connection with the Introduction or Engagement of any Child Carer to the Client and, in particular, without limitation to the foregoing, the Agency shall not be liable for any such matters arising from or connected with (a) the failure of the Child Carer to meet the Client’s requirements and/or (b) any act or omission of the Child Carer whether willful, negligent, fraudulent, dishonest reckless or otherwise.
9.3 To the extent that the Agency can limit its liability in law, the Agency’s total liability to the Client under or in connection with the Agreement, whether arising in contract, tort, negligence, breach of statutory duty, or otherwise, shall not exceed an amount equivalent to the aggregate Fee payable by the Client in connection with a Child Carer in respect of which the liability arises.
9.4 The Client will comply in all respects with all statutes, including, for the avoidance of doubt, the Working Time Regulations 1998, by-laws and legal requirements to which the Client is ordinarily subject including in particular the provision of adequate Employer’s and Public Liability Insurance cover in respect of the Child Carer. The Client shall indemnify the Agency for all losses, costs, expenses, claims, demands or damages incurred by the Agency arising from the Client’s breach of the Agreement and or any act, error or omission, breach of statutory duty of the Client arising out of or in connection with any Placement or this Agreement.
9.5 The Client confirms that they will take their own independent legal advice as to the Engagement of the Child Carer, and that it is legally responsible for all matters relating to the Engagement of the Child Carer. The Agency may on request provide a sample of a contract for service or contract of service, however any information supplied is provided for information purposes only. The Agency make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the information contained in any sample documentation that the Agency may provide to the Client. Any reliance the Client places on such information is therefore strictly at the Client’s own risk.London Governess Limited, The Registrar of Companies for England and Wales. Company Number 08021684
10.1 Each of the Agency and the Client agree to keep information of a proprietary nature received by the other including without limit the Child Carer’s CV and contact details in confidence and will only use the same for the purpose of evaluating and making Placements. The Client warrants and undertakes that it has and will not approach the Child Carer’s current employer, contact the Child Carer directly or disclose the contents of CVs to any other person without the Agency’s prior express written consent.
10.2 The Client and the Agency shall keep all Confidential Information disclosed by the other party confidential and shall safeguard the Confidential Information with the same standard of care that each party would apply to the safeguarding of its own Confidential Information.
11 General Terms
11.1 All sums payable by the Client pursuant to the Agreement shall be paid in full without any deduction, withholding, counterclaim or set-off.
11.2 The Agency may from time to time make changes to the terms and conditions of business herein and shall provide the Client with 30 days written notice of such changes.
11.3 The Agreement replaces, supersedes, and cancels all previous, arrangements understandings, representations and agreements between the parties either oral or written with respect to the Introduction of Child Carers. In the event that terms and conditions have been previously agreed between the parties, then this Agreement shall be deemed to have been accepted by the Client (in replacement of the previous terms and conditions) upon the Client’s further instruction for the Introduction of Child Carers.
11.4 All notices which are required to be given in accordance with this Agreement shall be in writing and may be delivered personally or by first class prepaid post to the addressee upon whom the notice is to be served or any other address that the party has notified the other party in writing or, by email.
11.5 Each provision of these terms and conditions of business (as defined by punctuation) is separate, distinct and severable. If any of the provisions of these terms and conditions of business are determined by the English Courts to be unenforceable, to any extent, such provision may be modified or severed from the remaining term and conditions of business to give meaning to the intention of the parties, and the remaining provisions including any such modified provisions shall continue in force. Words appearing in the singular shall mean the plural where appropriate and vice versa.
11.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these terms and conditions of business and no person or entity other than the Client and the Agency shall have any rights under these terms and conditions of business.
11.7 The Agreement is governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English Courts.
THE CLIENT ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD THESE TERMS AND CONDITIONS OF BUSINESS AND AGREES TO BE BOUND BY THEM.